A fifth petition filed, this one in *Little Sisters*: [UPDATE:
e. On July 23, 2015, the parties in one of the consolidated cases in the Tenth Circuit--Little Sisters, et al.--filed petition No. 15-105 <https://www.justsecurity.org/wp-content/uploads/2015/07/littlesisters.pet_.pdf> , *Little Sisters of the Poor Home for the Aged v. Burwell *[Paul Clement, Counsel of Record]. As noted above, all three judges on the Tenth Circuit panel, including Judge Baldock, rejected Little Sisters' claim on the theory that there can be no substantial burden in that case because the Little Sisters employees will not receive cost-free contraception coverage in any event: Little Sisters uses a church plan administered by Christian Brothers Services, which has itself made clear that, because of its own religious objections, it will not provide contraceptive coverage if the Little Sisters were to opt out--and the government may not compel Christian Brothers to offer such services. Little Sisters nevertheless argues in its petition (see footnote 2) that its opt-out might still result in coverage for its employees, because its plan has *another* TPA, Express Scripts, that has not made the same representation as Christian Brothers; and at oral argument in the Tenth Circuit counsel for the government represented that the Department of Labor would ask Express Scripts to provide coverage to those employees even though the government has no legal authority to require Express Scripts to do so. The judges on the court of appeals not surprisingly disregarded Little Sisters' argument respecting Express Scripts; as I blogged back in January 2014 <http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html>, and as the government argued to the court of appeals, "Plaintiffs made no reference to Express Scripts in their complaint or in their preliminary injunction filings, and allegations about this organization cannot be a basis for challenging the court's denial of the preliminary injunction. . . . Moreover, plaintiffs bear the burden of establishing their entitlement to injunctive relief, which they have wholly failed to do with respect to any possible coverage by Express Scripts." That is to say, even assuming that Express Scripts is a third-party administrator, the mere possibility that it might voluntarily provide contraceptive coverage to Little Sisters' employees, absent any regulatory compulsion to do so, presumably would be insufficient grounds to reverse the preliminary injunction, given that Little Sisters bears the burden of establishing its entitlement to injunctive relief.] On Mon, Jul 20, 2015 at 12:23 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > FYI, a post on developments of the past few months, in three parts: > > http://balkin.blogspot.com/2015/07/update-on-contraception-coverage.html > > *First*, a quick note on the government's new final rules regarding the > religious accommodation (including its extension to some for-profit > employers such as Hobby Lobby, Inc.). *Second*, a summary of the courts > of appeals' treatment of the nonprofit challenges. And *third*, a > discussion of the handful of *cert. *petitions that already have been > filed in the nonprofit cases--with particular emphasis on the theories of > complicity that those petitions allege in support of the argument that the > accommodation imposes a "substantial burden" on the plaintiffs' religious > exercise. > > I'd be very grateful if listmembers would let me know if I've gotten > anything wrong, or overlooked anything of note. And if you become aware of > any further court of appeals decisions or cert. petitions, please let me > know ASAP, so that I can update. Thanks >
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